The Ombudsman's final decision
Summary: Mr X and Mr Y complained the Council did not accept their planning permission remained in force, and this had caused them significant financial losses. We ended our investigation because we are unlikely to find fault, recommend the remedy the complainants want or achieve any other meaningful outcome.
The complaint
Mr X and Mr Y complained that the Council did not accept their planning permission remained in force, as they believed they had complied with the requirements of planning conditions.
Mr X and Mr Y also complained they were told by a planning enforcement officer that they could resolve the problem by submitting a retrospective application.
Mr X and Mr Y said they have suffered large financial losses, because their land cannot be sold with the benefit of planning permission. They would like the Council to: accept that requirements of the conditions have already been met; allow a further opportunity to demonstrate that the requirements of the conditions are met; or if these options are not possible, to compensate them for their losses, including costs relating to fees and diminution of land value.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6)) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done.
(Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
I read the complaint and discussed it with the complainants’ representative, Ms Y. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
I gave the complainants and the Council an opportunity to comment on a draft of this decision.
What I found
Planning law and guidance Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
Planning considerations include things like: access to the highway; protection of ecological and heritage assets; and the impact on neighbouring amenity.
Planning considerations do not include things like: views from a property; the impact of development on property value; and private rights and interests in land.
Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
Planning permissions are ‘time-limited’ and will lapse unless they are lawfully commenced in compliance with the approved plans and planning conditions.
It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so needs no planning permission. If the council accepts the evidence provided, it can issue a certificate of lawful use to the applicant.
This may happen where: the council has already granted planning permission for the use or development and remains lawful; a development is ‘permitted development’ and so deemed acceptable because it complies with limits in regulations; the development was unlawful, but the time limit for enforcement actions has now passed.
Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning Inspectors act on behalf of a government minister. They may consider appeals about: delay by an authority in deciding an application for planning permission; a decision to refuse planning permission or a certificate of lawful use or development; conditions placed on planning permission; or a planning enforcement notice.
We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has already or may yet decide.
What happened Mr X and Mr Y were first granted planning permission for development on their land more than a decade ago. They were being represented by a professional agent. The Council held the agent’s details as their representative, and so corresponded with the agent in relation to the application.
The complainants say that they dismissed the agent and accept they did not inform the Council They say they were not aware the agent had not informed the Council they would be representing themselves from that point onwards.
The Council said it had informed the agent that it was not satisfied with information provided to discharge planning conditions, and so the development could not proceed.
The Council did not receive the information it needed to satisfy conditions and the approval lapsed.
Mr X and Mr Y said they found a buyer for the land, but the sale did not go through because the Council said permission had lapsed. They believed they had provided the information the Council needed already.
A planning enforcement officer visited them. The complainants say the officer told them they could resolve their problem by submitting a retrospective application.
The Council said the officer had advised them that, if they believed they had the information necessary to discharge the conditions, they could submit a retrospective application, but the officer had made it clear they could not guarantee the outcome.
The Council said that, while the application had lapsed, it might have been able to approve a retrospective application, if this was simply a technical breach. However, while Mr X and Mr Y thought the information they had provided was satisfactory, the Council thought it was not. Because of this, the Council said the only way forward now, would be a fresh start, with either a full planning application or a prior notification permitted development application (if all regulatory conditions could be satisfied).
The Council said it would always try to be flexible, but it was not possible in this case. The Council had spoken with the planning enforcement officer, who said Mr X and Mr Y were adamant they had satisfied condition requirements, and at no point had the officer implied a retrospective application would be approved.
My findings
We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
Before we begin or continue our investigations, we consider two, linked questions, which are: Is it likely there was fault?
Is it likely any fault caused a significant injustice?
If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide: not to investigate; or to end an investigation, we have already started.
Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
I should not investigate this complaint further, and my reasons are as follows: There is no obvious evidence of fault in the decision making process here. The original approvals have lapsed, and development is unlawful. There is no evidence to suggest this has happened because of something the Council has done or has failed to do.
The agent was acting for the complainants and any problems that may result under their contract for service, is a matter for the parties to the contract.
It was not fault for the Council to correspond with the agent. It was for the complainants to inform the Council of any changes to contact details.
We are not an appeal body to judgements made by planning authorities. In the absence of fault in the decision making process, we cannot recommend a remedy.
The officer said the advice was based on a claim that the information necessary to satisfy the condition already existed, and that no assurance was given that approval would be granted. I have seen no evidence to show the planning officer gave misleading or wrong advice to the complainants.
The sums claimed are very large and not typical of the size and nature of remedies recommended by the Ombudsman under our guidance for remedies . Even if we were to find fault, we are unlikely to recommend the remedy the complainants want.
Final decision
I ended my investigation because it is unlikely to result in a finding of fault, a remedy for the complainants or any other meaningful outcome.
Investigator's decision on behalf of the Ombudsman